Foster Care System: Progress Report by Department of Social Development, with Minister

22 November 2017

Chairperson: Ms H Malgas (ANC)

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Meeting Summary

The Committee invited the Department of Social Development (DSD) and the South Africa Social Security Agency (SASSA) to give progress reports on the foster care system in South Africa. Highlights of the brief by the DSD included the total number of children receiving foster child care grants; the use of court orders to place children in foster care; challenges with pay-outs by SASSA due to lapsed court orders; backlogs of court orders that needed to be extended by 30 November 2017; the legal, systemic and implementation challenges of the DSD on court orders; and interventions designed to deal with the backlogs.

The Department outlined Clause Two of the Nomination of Motion application of the Centre for Child Law filed on 20 October, which declared that the failure of the Minister to provide amending legislation towards comprehensive legal solutions to the overburdened foster care system was illegal, unconstitutional and invalid. It also indicated that the comprehensive legal solutions required amendments to the Children’s Act 38 of 2005 and the Social Assistance Act of 2004. The key interventions included policy changes on the child care protection policy, which provided for the fast tracking of the amendments to the Children’s Act and the Social Assistance Act. The amendments had already been considered by Parliament and would go before Cabinet for approval in March, 2018. Other interventions were regular meetings with key stakeholders to implement an electronic foster care monitoring tool. There was also a need for more resources to be allocated for recruiting social workers.

The Committee expressed concern that the DSD had been permanently reactive and not proactive in solving problems before they started. It observed that the backlog was a continuous problem and was caused by the large difference between the foster care and child care grants. Members asked questions about foster care court orders; the implications of not being able to trace beneficiaries; alternative care units; the retention of social work graduates; alternative plans to address court orders before the expiry date; the cost analysis of project plans; and legal reforms and amendments in legislation to provide comprehensive legal solutions.

The Committee asked the DSD to clarify what happened to a child if the child’s foster parent died, what measures were used to assist with submitting Department of Home Affairs (DHA) identity documentation for foster care children who needed to be enrolled for the new school year, and to state how it was assisting non-South African children who needed comprehensive care and protection. It proposed that there was a need to engage with National Treasury to ask for an increase in the DSD’s budget allocation. Members commented that the Department’s systemic challenges led to having issues settled in the courts through court orders, and heard that the recruitment of social workers and comprehensive legal solutions would be addressed after the child care protection policy had been approved by Cabinet.

Meeting report

The Chairperson said the meeting was to monitor the progress of foster care in South Africa. An apology had been received from the Minister, who would be late for the meeting, and also from the Deputy Minister.

Ms S Tsoleli (ANC) asked the Committee Secretary to explain how the Deputy Minister (DM) was invited for meetings. Did the DM get an invitation from the Committee, or was she being copied by the Minister?

Ms Lindiwe Ntsabo, the Committee Secretary, said the correspondence of the Department went to the Minister as the political head of the Department. She said invitations sent to the Ministers were copied to the Deputy Minister and the Director General.

Ms B Abrahams (ANC) said the Committee wanted to understand the communication flow. The Deputy Minister had expressed displeasure that she was not always invited to meetings. It showed from the explanation that she did not want to be copied. If the procedure followed was the protocol of Parliament, then she could not have an exception.

Ms E Wilson (DA) said the fact that she had submitted an apology indicated that she was aware that she had been invited to the meeting. She said she would escalate the matter to the Department of Scoial Development (DSD).

The Chairperson thanked the Members and said the matter had been escalated about three weeks earlier and she would escalate it again. She asked Members to accept the apologies.

Ms Tsoleli proposed accepting the apologies.

Dr C Madlopha (ANC) said the Deputy Minister claimed that she had never been invited, yet she always sent her apologies. It was important to follow up on the issue. She seconded the proposal.

The Chairperson asked who was leading the delegation.

Ms Connie Nxumalo, Deputy Director General (DDG): Welfare Services, DSD, said she had been appointed to lead the delegation

Ms Tsoleli asked if she had a letter addressed to the Committee stating that she had been appointed by the Minister to lead the delegation. There was a need for the Committee to get a letter that indicated that Ms Nxumalo had been chosen by the Minister to lead the delegation.

Ms Nxumalo said she had been appointed by the Minister to act as the Director General for one week.

The Chairperson said there was a need for a letter, and the delegates should ensure that the Committee received a letter before the end of the meeting.

Foster Care: DSD Briefing

Ms Nxumalo said foster care was a statutory intervention programme. Placing children in foster care was done through a valid court order, and it was intended to provide care and protection in a nurturing, safe and healthy environment with positive support. 478 158 children were receiving foster child grants as at the end of October 2017.

There were several court orders regarding these children. There were orders related to the North Gauteng High Court on Section 176 that concerned 18-year-old children, and orders in terms of Section 159 of the of the Children’s Act 38 of 2005 as amended, respectively. The challenges emanated from the fact that in July 2010, the South African Social Security Agency (SASSA) had submitted a list of 299 076 foster children with lapsed foster care orders when the children were retained and receiving child grants. Due to the backlog, the Department had been litigated. A court order had been issued by the North Gauteng High Court on 11 May 2011, and a varied order on 2 June 2011 as a transitional mechanism from the old Child Care Act 74 of 1983, to the provisions of the Children's Act, 38 of 2005. The order meant that the Department was allowed to extend the foster care orders administratively until 31 December 2014. The order had been extended twice, until 31 December 2014 and again until 31 December 2017.

However, as at 4 September 2017, the backlog in all the nine provinces was still standing at 39 102. This number had to be eradicated by 30 November 2017 and be reported to the North Gauteng High Court (NGHC) on 31 December 2017. It was difficult to eradicate the backlog, because new order extensions lapsed every month because the orders cycle for each child was two years. All provinces had been required to submit sustainability plans to revert to the provisions of the Children’s Act by 7 December at the latest, because the extension would lapse on 31 December.

Apart from the backlog, there were 49 534 foster care orders that had to be extended before 31 December 2017 and another 30 232 that would lapse between January and March 2018, all to be extended in terms of Section 159 of the Children’s Act. Extensions for children who would be turning 18 years old also had to be done in accordance to Section 176 of the Children’s Act.

The Eastern Cape, Mpumalanga, the Northern Cape and the Western Cape had indicated that they would be able to meet up with the deadlines, while the Free State and North West would be able to clear up if they put in more effort. However, Gauteng, KwaZulu-Natal (KZN) and Limpopo were the three provinces that had the risk of not being able to meet the deadline. These three provinces also had the highest number of children in foster care.

She listed some of the interventions designed to deal with the backlog. The interventions were the development of the foster care project plan by the Ministers and Members of Executive Council (MINMEC) in 2011, the appointment of family finders by SASSA, and an investigation of the challenges faced within foster care systems across the country by the Ministerial foster care committee. Other interventions included monitoring and oversight through annual provincial meetings and the development of an integrated monitoring and evaluation framework for foster care by April, 2018.

Ms Nxumalo said key recommendations informed the child care protection policy which would amend the Children's Act. SASSA had shared its resources with the DSD, and continued to assist it. She listed the works monitoring and oversight done by the DSD. The interventions also included regular meetings among key stakeholders to implement the electronic foster care monitoring tool, the social pension system (SOCPEN), and update it to make provision for foster care orders issued for a period of more than two years.

The DSD was struggling with a shortage of supervisors. The supervision ratio should be one to eight, but there were cases where a supervisor was supervising up to 40 social workers. More supervisors were needed to ensure quality reports were submitted to the courts, and that they were finalised on time. Some of the Provinces had implemented strategies to eradicate the backlog, but others were lagging behind.

There were inter-sectoral collaborations with the Department of Justice and Constitutional Development to address the implementation challenges of the Child Care Act, and to strengthen and improve foster care services. The DSD had introduced the veteran social workers’ programme to assist with strengthening the social services work force. Scholarships had been given to students pursuing social work as a profession, and government had responded to the demand for social workers in the country. The DSD had embarked on foster care management programmes, such as training foster parents on their responsibilities in terms of the law, continuous in-service training for social workers on Child Act work and investigations in areas that had a high concentration of foster care placements. The national DSD had developed a draft child care and protection policy which was going through a final consultation and approval process. The Childcare and Protection Policy was due to be tabled before Cabinet for approval by 31 March 2018.

The challenges were the shortage of social workers, social work supervisors and canalisation officers for case flow management, and inadequate tools of trade which limited social workers. The appointment of more professionals would provide the ability to resolve cases faster. The advertisement of orphaned and abandoned children in newspapers in terms of Regulation 56 of the Child Care Act, before children could be put in foster care, was challenging because of inadequate budget allocations. Also, the courts minimally use Section 186 of the Child Care Act for long-term placement of children to promote stability and reduce incidents of lapsing orders. Other legal challenges were delayed scheduling of court dates, and the non-appearance of social workers in court.

The DSD had addressed these challenges by continually lobbying for additional resources to appoint more social workers, and using social services professionals to monitor foster placements and provide prevention services. It had also strengthened collaboration with the Judiciary, the Departments of Justice and Constitutional Development ((DJCD), Home Affairs (DHA), Basic Education (DBE) and Higher Education (DHE) to fast track the resolution of foster care cases, and the Department of Health and was working on finalising the child care protection policy by March, 2018.

Ms Shirley Misser, Director: Legal, Gauteng Province, said that the national DSD had initiated the extension of the foster care order on the same terms as the foster care order that would expire on 31 December 2017, but constitutionally the DSD had discovered it would not be able to extend the court order because the Child Care Act had been repealed. The DSD had decided that it would not extend the court order, so the provinces had had to eradicate and put systems in place to address the cyclical nature of the expiry of court orders.

The Centre for Child Law had filed an application on 20 October 2017, and Clause Two of the Nomination of Motion had declared that the failure of the Minister to provide amending legislation towards comprehensive legal solutions to the overburdened foster care system was illegal, unconstitutional and invalid. Also, the failure of the state to put in the necessary support mechanisms, structures and resources for foster care in a sustainable manner was illegal, unconstitutional and invalid. The comprehensive legal solutions required amendments to the Children’s Act 38 of 2005 and the Social Assistance Act of 2004. Therefore, Section 150 of the Children’s Act 38 of 2005 needed to be amended by removing the phrase 'has been abandoned or orphaned and was without visible means of support and had no family member caring for him or her’ and replaced with 'does not have the ability to support self and inability was readily apparent.' Also, Section 150 subsection 2 was a list of children who may be in need of care and protection. The amendment would be to add to the list, ‘a child who was orphaned and abandoned living with family members,’ as this would alleviate the pressure on foster care. Such children living with relatives would therefore not need to go through court processes except if there was a reason to believe that they needed care and protection, if the child was abused or neglected.

The DSD had drafted a third amendment to the Children’s Act 38 of 2005, and this had been presented at the Child Protection forum. There was a view that the Children’s Act and the Social Assistance Act of 2004 must be separated from the third amendment, because it was voluminous and would take too long. The third amendment needed to go through the Section 75 and 76 Bill processes, because it had provincial and national competences. The DSD would be pursuing the amendments separately in order to expedite the process, and it would be pursing the amendment separately in order to speed up the process after the policy was approved in March 2018. She said that the amendments to the Social Assistance Act, which included all orphans, would be presented in Parliament soon. Section six of the Bill, to make available the extended child support grant to the primary care giver, had also received general acceptance. All nine provinces had agreed to abide by the amendments and there would be a hearing in court on 28 November 2017.

The Chairperson welcomed the Minister, Ms Bathabile Dlamini.

Ms Nxumalo said she would like the Committee to note the challenges, interventions and progress made so far on foster care. All inputs had been captured.

Minister’s Overview

The Minister said the presentation gave the DSD an opportunity to present the work that had been done on foster care and to receive feedback from the Committee on its proposal to fast track some processes.

The foster child grant was currently used wrongly in the country, and people opted for foster care because it provided more money, and families could not adopt children of family members because of the cost of living. This had necessitated proposed legislation to extend the child grant to cover all orphans. Challenges also existed with the absorption of social workers, where other Departments such as the South African Police Service (SAPS) absorbed more people on a yearly basis, even when people did not leave the system, but the case was different with social workers. More social workers where required for efficient advancement of the interventions of the DSD at the grass roots level. The social workers needed to monitor the children timeously. The electronic tools only assisted with reporting.

Discussion

Dr Madlopha said the presentation had given clarity to her as a new member in the Committee. She asked DSD to state the implications of extending the foster care order in court, and to indicate if the funds needed were covered in the allocated budget. She observed that KwaZulu-Natal had challenges of high backlogs on foster care orders, and said some of the backlogs concerned people who were untraceable. She asked for the implication of not being able to trace these beneficiaries, and how long the Department would wait to trace them, because it raised concerns of fraud within the system. She observed that the people being sought were under the municipalities, and asked the DSD to give an update on its working relationships with ward councillors, municipalities, local government and traditional leaders. She suggested that it should collaborate with these entities to assist with tracing the beneficiaries, because these stakeholders had data of people living in their areas. She asked which provinces had alternative care units.

Ms Abrahams observed that the DSD had mentioned that the third amendment would be sought separately because it would need to pass through the Section 75 and 76 Bill process, and asked about the legal implications of processing the third amendment separately. How would the DSD approach cases where parents failed to submit documents to SASSA for the extension of court orders, and what measures were in place to deal with the lack of documentation for non-South African children? She asked for an update on the two provinces that attended hearings on the draft childcare and protection policy, but had not submitted their action plans. What were the consequences for social workers who did not appear in court? She observed that the DSD had giving bursaries to aid students to acquire degrees in social work, and asked how it retained the social work graduates.

Ms Tsoleli said she was highly disappointed with the DSD’s operations. The impression given to South Africans was that the DSD was being run by the courts, because the courts always had to intervene. She felt that the DSD had failed South Africans, and that the interventions should have been put forward much earlier. The proposed amendment to the Children’s Act should have been included in the 2016 amendment. It showed that officials were not doing their work and had forgotten their responsibilities, because the Centre for Child Law’s motion had indicted the Minister. She also observed from the brief that social workers did not come to the courts, and asked how the DSD responded to the issue of a worker who neglected to carry out his or her duties. Provinces that were not doing well should learn from other effective provinces. She questioned the accuracy of the data presented by the DSD on provincial court orders, because it needed to have alternative plans if provinces failed to address court orders before the expiry date. She asked Ms Misser to clarify the Act that had been repealed.

DSD’s Response

Ms Nxumalo said the high court order empowered the DSD to administratively extend foster care orders as a transitional measure to address backlogs because the Act had been repealed.

The financial implications of employing enough social workers and having enough tools for the efficient operation of the DSD were high.

Proper costing on foster care orders had been done when the Child Protection Act was promulgated, but the budget allocated did not have sufficient provision for it.

KwaZulu-Natal had the highest backlog, but had reduced it extensively within the week. The total backlog included the number of people that were yet to be traced. KwaZulu-Natal and the DSD, in collaboration with SASSA, had stopped the payment of social grants to untraceable beneficiaries to allow the untraceable beneficiaries to come forward and this had yielded results. If beneficiaries remained untraceable the grants would be stopped.

The DSD needed to recruit professional that were trained on children's rights. It currently needed child and health care auxiliary workers and social workers who were experienced in child rights, who were on DSDs’ register.

It had fully-fledged alternative care units in Mpumalanga, the Western Cape and Northern Cape, and Gauteng were Eastern Cape coming up. Provinces with alternative care units handled foster care better.

Officials who did not go to court would be held in contempt of court, and would face consequences.

The Department had a backlog of 3 000 social workers which it had not been able to employ. Efforts included obtaining approval from National Treasury to cut the money used for scholarships to appoint social workers.

The perception that the DSD was run by the courts was wrong, hence the two amendments had been proposed. The child care protection policy had been considered and was waiting for final approval by Cabinet.

The social pension system (SOCPEN) was a credible system. The DSD used SASSA’s early warning system to confirm the accuracy of statistics given to the Committee through SOCPEN.

Ms Misser said there was a need to fast track the amendment of the Children’s Act, therefore it had been separated from the third amendment. The review of the Act had started in 2012 and the amendments were ready by 2015, so the delay in processing the amendments had been addressed in this brief. The hearing in court on 28 November actually made provision to extend the court orders.

Ms K Jooste (DA) said there was a need to be clear about the cause of the backlog. The backlog was a continuous problem and was caused by the large gap between the foster care and child care grants. The solution would be to align the foster and child care grants. She did not agree with the extended child grant policy that was being proposed by the DSD, because it was the main cause of the problem. The extended child grant policy would make children living with relatives receive more, compared to children living with their parents. She proposed that the pay-out for the child grant be increased to ensure that the difference between the foster care and child care grants were a minimum.

Ms Masango observed that the DSD was not performing well if it was still paying social grants five years after foster care orders had lapsed and required extensions to continue, and the Centre for Child Law had required comprehensive legal solutions. It appeared that the DSD had used reactive measures to deal with the backlogs, and had not dealt with new entries until the Centre for Child Law had intervened. She asked how the amendments proposed by the DSD would deal with the challenges faced in foster care. She suggested that the DSD needed to regain control of its operations and asked it to clarify if it had done a cost analysis of the year 2011 project plan.

Ms E Wilson (DA) expressed concern that the DSD had been permanently reactive and not proactive in solving problems before it started, but appreciated the honesty of the presentation. She said the Committee had been aware of the shortage of social workers since 2014, which had been confirmed by the presentation. She asked the Minister to clarify the proposed timeframes for when DSD strategies to increase social workers would become a reality. She observed that non-governmental organisations (NGOs) were closing down, and the gains of employing more social workers were lost by the exit of the NGOs. She remarked that the DSD could not continue to complain of an insufficient budget allocation to employ social workers when its travel expenditure was so high. She advised the Minister, the DG and the heads of departments in the DSD to get their priorities right.

Ms V Mogotsi (ANC) asked the DSD to clarify if it did its research well before presenting data to the Committee, because the number of children on foster care grants alluded to in the report was quite low if compared with the 3.7 million children in the country. She observed that the officials doing the sampling in the DSD were not doing well and should get reliable data from Statistics SA. It should put together a technical team that would address foster care challenges.

Minister’s Response

Ms Dlamini observed that the Committee was part of the process of passing the budget, and understood its intricacies. The DSD’s challenge was in moving money from one programme to another. It depended on the funding from National Treasury.

Almost all Departments were taken to court for different reasons. There was a need for a new law, and the courts got involved because children were going to be compromised. Another problem was the big difference between the child support grant and the foster care grant. The foster care grant was a special grant, but it had been used by people for other reasons. The DSD was working towards resolving challenges in foster care by enacting tighter laws.

She said it was not fair to blame officials for laxity with their duties when the challenges on getting budget allocations were known to all. Provinces had plans for the recruitment of social workers and they could come to the Committee to account for their programmes.

The DSD based its work on research, and worked with Statistics SA data, but worked more with the United Nations Children’s Fund (UNICEF) when it came to children, because UNICEF specialised in children.

Child support pay-outs were smaller compared to foster care support pay-outs, but child support paid more than 11 million grants monthly. She cited an example of children in KwaZulu-Natal who were registered under foster care and collected pay-outs while they were no longer in the country. DSD officials have followed cases where there had been collusion. Also, there were matters before the Financial and Fiscal Commission (FFC) which needed to pass through the Committee for approval before they were implemented.

The DSD had had to use funds intended for scholarships to recruit social workers to increase efficiency in the foster care program.

Social development work-streams required a lot of travel, but the DSD had to drastically reduce travelling expenses to ensure that its operations were efficiently carried out. Budgets allocated to it were distributed equally, based on approved programmes. NGOs would get support based on the DSD’s budget, but would not get an increment.

Ms Nxumalo said the Centre for Child Law (CFCL) was one of the organisations that it collaborated with, and it sat in all of the DSD’s forums on child care. It had not been reacting to the CFCL, but had been presenting its plans to it from time to time. The DSD had long term plans, medium and short term plans to eliminate the backlogs, and the CFCL was aware of this.

Provinces had to re-prioritise to be able to achieve what they had achieved to date, because they had not received more budget. The DSD submitted plans to the Treasury, indicating the need for more budget allocation for its programmes.

Its approach may look reactive because of its systemic challenges on foster care, but it was being addressed by the proposal for the child care protection policy amendment. Foster care was an end result, and if many issues were dealt with, there would be fewere children in foster care.

The DSD did research work with Stats SA, and was currently doing evaluation studies in conjunction with it, and knew where the bulk of beneficiaries were. Although the DSD referred to the number of children serviced on foster care, it did not mean other children were not cared for, because some of the orphans were taken care of by the child support grant. The DSD had a tool that it used to track maternal orphans, and it worked in conjunction with the Department of Home Affairs (DHA) up till Grade 12.

Ms Masango asked DSD to clarify what happened to a child if the child’s foster parent died.

Ms Wilson asked what measures were used to assist with submitting DHA ID documentation for foster care children who needed to be enrolled for the new school year. She also observed that social workers did not have statutory titles, and were simply ‘social workers.’

Ms Tsoleli said although everyone knew what should be done with legal reforms on foster care, but stakeholders were too slow in making the changes. The people of South Africa wanted to see children accessing child and foster care grants, and it was also a priority of the African National Congress. Court orders became a priority even with limited resources, because children were involved. The processes to improve foster care needed to be fast tracked to enable social workers to carry out their duties in a professional manner. Parliament had noted the gap, so the legal department must address the law and the DSD needed to priortise the reforms on the social grant.

Ms Abrahams said she did not get a response on the question of provinces that had alternative care centres.

Ms Nxumalo said the DSD had noted the recommendations to prioritise court orders on foster care, since children were involved. The policy would be considered by Cabinet early next year. The DHA acted on the orders of the courts, and not on social workers’ demands -- both documents needed to be provided before ID documents were issued by the DHA.

The DSD did not have a specialisation on social work, and categories were not allowed for social workers.

Ms Diane Dunkerley, Head of Grants Administration, SASSA, said that SASSA made provision for when a foster parent died. An amendment had been made to extend foster care in terms of Section 159 of the Children's Act, which had been promulgated and gazetted last month. However, extension of Section 186 of the Children's Act would take longer, as it had to go back to court for proper screening, and comprehensive assessment for prospective parents that would take over. She expressed concern over the plight of non-South African children, because all children should be treated equally, but remarked that the DHA was strict with issuing birth certificates because it would compromise the population register. However, SASSA was negotiating with the DHA to issue a sort of ID that allowed the non-South African child to receive comprehensive care and protection.

Ms Mogotsi asked for a response from the Minister on her advice of putting up a technical team that would report to the Committee on progress in resolving foster and child care issues as had been done with SASSA, because the problems were inter-departmental.

The Minister said after 7 December, a meeting could be convened and the DSD would report on its progress. In the meantime, a technical team would be formed consisting of representatives from the DHA, the DoH and the DSD to find solutions, and invite provinces to give reports. Extending court orders and tracing beneficiaries had been a challenge, but improvements were seen when provinces were held accountable. The child care protection policy would soon be approved by Cabinet, and the systemic challenges would be resolved.

The Chairperson said it had been an interesting meeting. There was a need to look at the budget, because the Committee passed the budget and appeals could be made. She agreed that there was a need for a collaboration and joint meetings between the DHA, DoH, DBE, DHE and DSD. She observed that the systemic challenges of the DSD led to having issues settled in the courts through court orders which could be resolved only by comprehensive legal solutions. The recruiting of social workers and comprehensive legal solutions would be addressed after the child care protection policy had been approved by Cabinet. She acknowledged that progress had been made.